We spoke with Isabel Antón, a legal expert on the subject and director of the Vogue Diploma in Fashion Law.

The success of KIKO Milano cosmetics stores sparked a debate about intellectual property at the beginning of the decade. The Italian multinational began detecting stores with similar products that replicated its visual identity, creating confusion among consumers and raising questions about the boundaries between inspiration and copying in the industry. Intellectual property law had no precedents for such cases, so the company went to court to protect its design as a differentiating element from the competition. The resolution came in the form of a court ruling that established that, under certain circumstances, companies could rely on intellectual property regulations to protect the design of their stores. 

Fast Fashion and Intellectual Property: A Growing Problem 

Today, intellectual property in fast fashion is a pressing issue. Why? Because the speed at which fast fashion brands replicate trends makes it difficult to protect original designs. Brands like Shein have been accused multiple times of releasing products that closely resemble creations from independent designers or luxury brands. 

The fast fashion model is based on the mass production of garments inspired by the latest runway shows or the aesthetics of luxury brands. However, this “inspiration” often borders on plagiarism, raising legal conflicts about how far a design can be replicated without violating the law. 

Counterfeiting or Copying: Where Is the Line? 

The difference between counterfeiting and copying in fashion is not always clear. According to Isabel Antón Juárez, professor of Private International Law at Carlos III University of Madrid and director of the Vogue Diploma in Fashion Law, this topic “is complex because it requires examining the specific case, looking at the two products in question—the copy and the original—to determine if it is legal from a trademark perspective or under the framework of unfair competition.” 

Antón explains that it’s essential to differentiate between two key concepts. 

“On one hand, counterfeiting is illegal from a trademark perspective and can even be pursued criminally. Under trademark law, counterfeiting is illegal because it typically involves double identity—trying to make the product look as much like the original as possible, using the third party’s brand without permission on the fake product, replicating the brand on the bag, scarf, etc., to make it look as original as possible” she explains.

On the other hand, she distinguishes counterfeiting from copying, now called dupes (duplicates), where the boundaries are less clear. “With a dupe, there is more creativity, variations compared to the original. For this reason, determining whether it is legal is more complicated,” she explains. If those copies are partially different from the original, they can be protected and claim that there is no infringement of intellectual or industrial property, but rather inspiration. “To determine if a copy is legal, it’s crucial to consider, for example, whether the design or external appearance is protected as a 3D trademark or an industrial design. If such protection exists, it may be easier to defend it legally and for a judge to rule in favor. However, it’s important to analyze the specific case, comparing the two products and assessing whether there is confusion or the risk of confusion on the part of the consumer.” 

An Exception to Consider 

Another aspect to consider about intellectual property is that, under the Unfair Competition Law, particularly Article 11, imitation is allowed. The principle of free imitation aims not to infringe on free competition and allows companies to create and improve. “However, this principle has its exceptions, and one of them occurs when the creation being imitated (for example, a bag or a perfume bottle) is protected by an exclusive right, such as a trademark or a design,” summarizes the expert. 

Frequently Asked Questions About Intellectual Property and Fast Fashion 

• Is it legal to be inspired by another brand’s design to create a similar product? 

It depends on the degree of similarity and whether the original design is protected. Under the Unfair Competition Law, imitation is allowed unless the original creation has exclusive rights, such as a registered trademark or an industrial design. If the replica causes confusion or association in the consumer, it could be considered an infringement. 

• What is the difference between counterfeiting and copying in fashion? 

Counterfeiting is illegal because it identically reproduces a product protected by a trademark, with the intention of making it appear as the original. In contrast, a copy or dupe usually presents variations that distinguish it from the original product, making it more difficult to determine its legality. 

• How can a brand protect its designs in the fashion industry? 

Brands can resort to various legal tools, such as registering industrial designs, protecting designs as three-dimensional trademarks (3D), or, in some cases, relying on copyrights. If they lack these protections, they can claim unfair competition if they demonstrate that the copy creates confusion for the consumer. 

Conclusion 

Fast fashion has challenged the boundaries of intellectual property in fashion, sparking an ongoing debate about what constitutes mere inspiration and what is illegal copying. While the law allows a certain degree of imitation, brands and designers must resort to legal tools to protect their creativity and stand out in an increasingly competitive market. 

The challenge for the industry is to find a balance between innovation and accessibility, ensuring that fast fashion does not become a breeding ground for plagiarism. In this context, intellectual property legislation continues to evolve, aiming to ensure that design and originality are properly valued and protected.